In Stephens, the military judge permitted the 13-year-old victim's father to testify during the government's sentencing case "concerning the impact that the pretrial and trial process (specifically testifying at the Article 32, UCMJ, investigation and at trial) had on his daughter. Her father told the members that the process of testifying multiple times and having to retell the story of her victimization 'has been totally devastating' . . . ." Id., slip op. at 9-10. At trial, the defense objected "that this line of testimony essentially punished [the accused] for asserting his constitutional right to a jury trial, to cross-examine the witnesses against him, and to have the government bear the burden of proving every element of the offenses with which he was charged." Id., slip op. at 10. The military judge nevertheless allowed the father to testify "to the emotional impact on BU of having to go through the judicial process." Id., slip op. at 11.
The Air Force Court affirmed the military judge's ruling. AFCCA reasoned that "it would be unreasonable for someone who commits an offense of this type to argue that it is unforeseeable that the victim of a sexual assault would be called testify [sic] at a trial. Further, it would be just as unreasonable to argue that one could not foresee that the act of testifying could be emotionally difficult for a 13-year-old girl." Id. The court concluded, "Having to testify at trial . . . is directly related to, and results from, the commission of the offense." Id.
In Carr, on the other hand, the Army Court held that the trial counsel's sentencing argument was "impermissible" because he "was allowed to argue adverse impact in aggravation flowing from the appellant's exercise of his constitutional rights to confront and cross-examine witnesses against him." Carr, 25 M.J. at 638 (footnote omitted). ACMR reasoned, "[W]e find that it is inappropriate that any party to a court-martial should be allowed to profit, directly or indirectly, by argument on findings or sentence regarding an exercise of a constitutionally protected criminal due process right." Id. at 639. The court continued:
While ensuring fundamental fairness at trial unavoidably impacts upon all parties thereto, such "impacts," in our view, relate directly to the due administration of the military justice system rather than to offenses on which there are findings of guilty. Accordingly, argument urging systemic impact resulting from the exercise of constitutional rights at trial is impermissible in aggravation. R.C.M. 1001(b)(4) (matters in aggravation must directly relate to or result from the offenses of which an accused has been convicted).
Id. The Army Court knocked two years off of Sergeant Carr's approved sentence to remedy the error. Id.
I find the Army Court's reasoning more convincing than the Air Force Court's. More importantly, so does the Eighth Circuit. In Burns v. Gammon, the "prosecutor asked the jury, while considering guilt and sentencing, to consider the fact that Burns, by exercising his constitutional right to a jury trial and to confront witnesses, forced the victim to attend trial, take the stand and relive the attack." 260 F.3d 892, 896 (8th Cir. 2001). Reaching a conclusion similar to that of the Army Court's in Carr, the Eighth Circuit held, "The prosecution cannot use the defendant's exercise of specific fundamental constitutional guarantees against him at trial." Id.
But whatever the correct outcome of this legal issue, Stephens cries out for CAAF review. It cannot be that a Soldier is entitled to a new sentencing hearing where the prosecution presents evidence like that in Stephens, but an Airman is not.